those judicial review provisions are. Under $309 of the '91 Act (a section that was enacted as statutory law), the Federal Circuit is authorized to review decisions made through the Senate's internal grievance process, which may include decisions by the Ethics Committee. The scope of review is extremely narrow, like the review normally given to the decisions of regulatory agencies that are (quite unlike the Senate) insulated from the interests of the parties. To the extent that the Senate has attempted to use its rulemaking power to create rights that are enforceable in the courts, the effort may fall afoul of the principle articulated in the Chadha decision that the "legal rights, duties, and relations" of persons outside the legislative branch can be altered only through legislation.36 Resolution of the questions that are raised in light of Chadha may be affected by a number of considerations, such as whether the Senate's attempt to exercise its rulemaking power through a provision included in a bill passed by both Houses and signed by the President renders Chadha's rule inappplicable, and whether the Senate employees who bring discrimination complaints are considered for that purpose to be "outside the legislative branch." The answers to these questions are not clear. Nor is it by any means obvious that a Senate rule can be considered one of the "Laws of the United States" referred to in Article III of the Constitution. Perhaps that difficulty could be overcome by arguing that the Federal Circuit will not enforce Senate employees' substantive rights to be free from discriminatory treatment, but will enforce only statutory procedural rights such as those set out in §309(c). Even if this argument were accepted, however, it would still be true that the Federal Circuit must in some cases actually review a decision made by a body of Senators (such as the Ethics Committee) that was itself acting pursuant to a Senate rule. That rule was presumably adopted pursuant to the constitutional provision authorizing each House to govern its own proceedings, and the exercise of this authority, which is committed by the Constitution itself to each House (though not necessarily on an exclusive basis), may not be judicially reviewable.37 I think it is impossible to predict with confidence that the courts will conclude that there is nothing constitutionally exceptionable about the singular relationship between the judicial review provisions of the Civil Rights Act of 1991 and the rights and procedures under which the cases subject to such review will arise. Nor do I think there was any necessary legal reason to have created the risk that these provisions will be invalidated on constitutional grounds. The task of drafting a statute that gives congressional employees the same rights that have been given to other Americans is not difficult. It has already been done for those who work in the GAO, and there are any number of models that could be used for other congressional employees. As the Civil Rights Act of 1991 demonstrates, however, it is also quite easy to draft provisions that create unnecessary constitutional problems while preserving the essence of the congressional exemption from the laws. Unfortunately, I have to say that problems resembling those in the '91 Act also seem to be present in one of the bills being considered by this Committee. Under the Lieberman-Grassley bill (S. 2071), the principal substantive rights conferred on executive agency employees are given to congressional employees by law, and trials are made available in Article III courts. So far, so good. The bill, however, also provides that courts may only order such remedies as are authorized by regulations promulgated by a newly created instrumentality of Congress.38 The regulations issued by that instrumentality would be subject to a legislative veto; apparently in recognition of the Chadha decision, the bill specifies that the legislative-veto mechanism is created by a rule of the Senate rather than by law 39 There are at least two kinds of legal questions raised by this arrangement (quite apart from the policy questions raised by the fact that executive agencies and private employers do not get to choose what remedies will be available against them when they are sued). First, it is not clear that the scope of the remedial powers of Article III courts can be dictated by an instrumentality of Congress. Second, regulations that are subject to rejection pursuant to a rule of the Senate might not be properly characterized as the kind of "law" that the judiciary may enforce. I can't say for sure how the courts would resolve these questions, and I haven't had the time to research the issues thoroughly. But there is unquestionably a conflict between the Senate's apparent desire to subject itself to judicial review and its reluctance to bind itself by law rather than by Senate rule. The bills offered by Sen 36 Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 952 (1983). 37 Cf. Nixon v. United States, 113 S. Ct. 732 (1993). 38 See S. 2071 § 10(a)(3). Hearing on Congressional Compliance with Federal Labor, SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS 9:00 a.m., Wednesday, June 29, 1994, Room SD 342 Testimony of Harriett G. Jenkins, Director, Mr. Chairman and Members of the Committee: Thank you for inviting us to testify before your committee on Congressional compliance with Federal labor, employment, and information laws. I have brought with me Carl Moore, Deputy Director of the Office of Senate Fair Employment Practices, who has been very instrumental in reviewing several legislative bills on this subject. In addition, Mr. Moore has 11 years direct experience as the General Counsel for the Personnel Appeals Board of the General Accounting Office, as well as 9 years as a labor management attorney in three other significant assignments. Therefore I believe his testimony will be very helpful to your deliberations. You asked that we report on the following issues: A. The improvements that we believe are needed in the B. C. Our views on the feasibility of expanding the GERA administrative process to handle complaints from employees of the House of Representatives and possibly the instrumentalities of Congress. Our thoughts on the establishment of a credible and expeditious alternative dispute resolution system. Our testimony will respond to each of these three areas, and extended remarks in greater detail are enclosed as an appendix A. Suggestions for Improvement of the GERA Process The Government Employee Rights Act (GERA) authorized the establishment of the Office of Senate Fair Employment Practices (OSFEP) to carry out two statutory functions: (1) administer the complaint process spelled out in that Act, and (2) heighten awareness of employee rights so discrimination would not occur. Later, in 1993, with the passage of the Family and Medical Leave Act, the office was authorized to do the same under that statute. Today, we will be testifying mostly about the complaint process, but we feel that the other statutory function of raising awareness is equally important. For your information, we will briefly review the GERA complaint process. If a current or former Senate employee or applicant for employment perceives that he or she has been discriminated against on the basis of race, color, sex, national origin, religion, age (40 or over), disability, or intimidation or reprisal, or if the person feels that his or her Family and Medical Leave rights have been violated, GERA provides a five step process for resolution or adjudication of his or her allegations: 1. 2. 3. 4. Counseling, where rights are explained and issues are clarified by our Counselor/Mediator. Mediation, where the parties attempt to resolve the Formal complaint is filed and a decision is made by a Appeal of the Hearing Board decision to the Senate 5. Appeal of the Ethics Committee's decision to the U.S. OSFEP opened June 1, 1992, and ten days later, as required by the statute, was ready to provide counseling for Senate employees and applicants, beginning June 11, 1992. The discrimination complaint process has been well utilized during the past 2 years by employees from many different kinds of Senate offices. During that time period, 337 persons came to our office seeking advice about issues which they perceived to be unfair in their work environment. Of that number, 311 were covered by GERA. The remaining 26 individuals who sought advice were employed by other entities on Capitol Hill that are not subject to GERA. 2 As of May 31, 1994, 224 of the 311 persons who were under the legal jurisdiction of the Title III procedures had requested advice only from our office. The remaining 87 had proceeded through various stages of the five step process in the following numbers: 87 requested and entered counseling, and 2 cases were settled at that first stage. 58 proceeded to the mediation stage, during which 9 26 went on to file formal complaints and enter the hearing stage; 14 of these 26 complainants have been processed as a consolidated case because of the commonality of facts and legal issues. During this stage, the hearing board issued 4 decisions, including one which covered the 14 individual complainants; and 7 cases were settled. 3 cases, including the one with 14 individuals, had become eligible for appeal to the U.S. Court of Appeals during the past 23 months. One case was not appealed; another case is presently before the Court of Appeals; and one case involving the 14 employees is still eligible for appeal. The 87 persons who entered counseling alleged that they had been discriminated against on the following bases, in descending order of frequency: age, reprisal, race/African-American, sex/female, disability, religion, sexual harassment, national origin, race/caucasian, color, and sex/male. The personnel actions or practices which were named most often as evidence of the alleged discrimination were, in descending order of frequency: compensation, retirement issues, termination, promotion, terms and conditions of employment, assignment, position classification, demotion, discipline, benefits, reasonable accommodation, selection, and training. That gives you a brief overview of the GERA complaint process and the experience of Senate employees during a two year period. In general, we feel that the GERA administrative complaint and hearing process is effective in providing to Senate employees a mechanism for fair and objective review of their allegations. Nevertheless, we do have recommendations for the improvement of the GERA process. The major suggestions are summarized here, and they and additional suggestions are discussed in greater detail in Appendix A, COMMENTS ON IMPROVEMENTS IN THE "GERA" PROCESS AND ON S.2071. |